Substantive due process

Substantive due process is the idea that the due process clause of

Part of the series on

U.S. Discrimination Law

Standards of Review

Rational basis review Intermediate scrutiny Strict scrutiny

Other Legal Theories

Substantive due process State action doctrine

Defining Moments in Law

The 14th Amendment Plessy v. Ferguson Brown v. Board of Education Loving v. Virginia U.S. v. Virginia Romer v. Evans Lawrence v. Texas

Modalities of Constitutional Law

Textual Responsive

the Fourteenth Amendment regulates not only the procedures due a citizen, before revoking a right, but also what rights may be revoked at all. It has become a legal theory tied uniquely in the area of fundamental rights jurisprudence - or, the protection of certain inalienable, yet undefined constitutional rights. Antonin Scalia sharply dissents from almost all cases upholding substantive due process, believing that there are no fundamental rights if they are not defined by the constitution, or discoverable from American history.^{[Citation Needed]}

Lochner Era, and Before

The justly reviled decision Scott v. Sanford was the first to suggest that the Constitution protects certain rights (free use of "property," in this case) from intrusion by the government, even if constitutional safeguards had led to a procedurally "correct" taking. Although Dred Scott was thankfully overturned by the Reconstruction Amendments, the seeds of substantive due process were sown in the constitutional landscape.

The doctrine was later, famously, picked up by the Court in Lochner, a decision which held that federal minimum wage laws intruded too far into the "fundamental right" for an employee and an employer to freely contract. This fundamental right could not be abridged even by fair legislative processes. This line of jurisprudence - which came to be known as "economic" substantive due process - came to an abrupt end in the wake of the Great Depression, which forced a nationwide crisis of conscience in the doctrines of full and free laissez-faire, the philosophical underpinnings of Lochner. It was fully overturned in West Coast Hotel.

Another famous case picked up substantive due process as a constitutional "hook" before it became popularized in the 1970s - the famous case outlawing miscegenation statutes, Loving v. Virginia. The Lovings,a mixed-race couple, sought to have their marriage accepted in their home state of Virginia, which, like many other Southern states, had outlawed mixed-race marriages. Although the Court invalidated this ban (forcing Virginia to recognize the Lovings' marriage and striking another blow against Jim Crow laws and racism) on equal protection grounds, the case included a line near the end, almost as an afterthought, describing the right to marriage as a substantive right, fundamental to human life, which the state could not lightly intrude upon. Due process, though, would not be picked up again by a discrimination case for another 40 years.

Griswold Era

Changing sexual norms, and conservative reactions to these norms, brought about Griswold v. Connecticut. In the case, Connecticut had forbidden the sale of contraception materials to married couples.